Eugene Fidell on Defection, Desertion, AWOL—and Whether to Prosecute

One of the clearest thinkers on US military justice and procedure is Eugene Fidell. And one of my favorite interviewers is Robin Young on WBUR’s Here and Now. The two recently met to discuss the Bergdahl case and the possibility of a future court martial. The interview provides a great nuts-and-bolts description of the black letter law and prosecutorial discretion in such cases.

WBUR has yet to provide a transcript. Given the current attention to these issues, we have created a transcript (thanks to the industry of one of Just Security’s new summer interns, Adrian Lo). Here is both the audio and our transcript of the interview:

H&N: Have prisoners of war faced court-martials?

EF: Yes, there have been POWs who have been taken to trial—it is very unusual—but if you have a POW who helps the captor mistreat other POWs, that person is going to get prosecuted if we get our hands on him or her.

H&N: In the meantime, lots of words have been thrown around: deserter, defector…

EF: There is no indication that Sgt. Bergdahl left with a view to joining the Taliban, that’s defection.

H&N: We are hearing soldiers say that there are all sorts of rumors flying around, that he was actually connected to the Taliban. It’s just wild, wild rumor now, but if anything like that were to be proven, then that would make him a defector?

EF: Well, I suppose. The offense is becoming part of the enemy camp, crossing lines and basically aiding the enemy.

H&N: So what is a deserter, as opposed to a defector?

EF: A deserter is simply a member of the Armed Forces who leaves his or her duty station, classically with a view to remaining away permanently. That’s the difference between a deserter and somebody who simply goes AWOL. A person who is AWOL is simply a person who is not at his or her duty station at the appointed time, so that the person, for example, who shows up 15 minutes late for morning inspection formation is technically AWOL for those 15 minutes. That’s a far cry from the person who goes over the fence, having left a note on his or her rack saying, “Sarge, I’m leaving and you’re never going to see me again.” That’s a deserter.

H&N: And how does someone go from speculation about why they left the base to a court-martial, what’s that process?

EF: There has to be an investigation that

is conducted and the Army has already, years ago, conducted what’s called an Army Regulation (AR 15-6) investigation. That’s simply an administrative inquiry, typically conducted by one officer, to just develop a factual record, the basic facts.

H&N: Is this the 2010 report we hear about?

EF: Yes, I believe that is the case. And that can be supplemented, maybe it is a little stale by now, maybe more people are more willing to speak. It’s possible, by the way, that back in 2010, there were some members of the unit who were, let’s say, economical with information because they thought that something they may have done might have put their own conduct under the microscope. Who knows? We don’t really know. In any event, at a certain point, some military person will initiate a report of offenses. That would then go to a commander with an investigative file. The commander then has to decide does the information available indicate that there may be a basis for disciplinary action under the Uniform Code of Military Justice of a fairly serious nature. If so, the commander then can refer the matter to what’s called an Article 32 Investigation. An Article 32 Investigation is simply to determine whether there is probable cause to believe that an offense has been committed, and to make recommendations, really, as to how that offense should be dealt with, either disregarded because it is minor, or circumstances don’t lend themselves to trial for one reason or another, or handled at a very low level of disciplinary action called Non-Judicial Punishment, which is not a court-martial, or refer to one of the three levels of court-martial. The highest level of court-martial is a general court-martial, and the person under current law who has the power to decide whether any set of charges should be referred to a court-martial is a commander, not a lawyer. The commander, called the Convening Authority, will have legal advice from his or her staff judge advocate. But under our current system which, forgive me, we inherited from George III, that power is held by commanders, who are not lawyers.

H&N: Are there any subjective factors that are brought in? In this case, for instance, we are hearing reports about how this outpost was just hell on earth, undermanned, undisciplined. Will those kinds of considerations be taken in, if in fact it was just a guy who lost it and walked off his outpost?

EF: Those kinds of considerations do not strike me as particularly pertinent to whether the military justice process should be brought into play. For example, you could have a unit that’s kind of a mess. That doesn’t mean that the person gets a free ride when he or she has committed an offense. It goes to whether certain other actions should be taken, for example, hammering those people in the chain of command that permitted a unit to become a mess. You can certainly take into account the fact that a unit was operating in a strange and forbidding environment and Afghanistan—all of it—certainly fits into that description. You could take into account, I guess this is done, the unavailability of witnesses. You could basically abort the entire process by saying, look; we’re not going to be able to get witnesses. I do not see that happening here. That said, once the decision is made to send the case to an Article 32 investigation, then the Article 32 investigating officer can bring in, within reason, those factors that he or she thinks might be of interest to a Convening Authority who has the power to make a decision what to do with the charges. For example, if it turned out that the individual, and here I’m obviously thinking of Sgt. Bergdahl, was subjected to brutal treatment during the course of his AWOL, that might be a factor that you would take into account. Suppose he was a total mess physically, suppose he was a total mess emotionally, a person who under no circumstances would be a candidate for serious criminal punishment. Well, sure you would take that into account. Some of the other things you mentioned, though, strike me as not moving the needle at all.

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About the Author(s)

Co-Editor-in-Chief of Just Security, Anne and Joel Ehrenkranz Professor of Law at New York University School of Law, former Special Counsel to the General Counsel of the Department of Defense (2015-2016).
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